2012 IL App (1st) 112401
Ill. App. Ct.2012Background
- Credit Based Asset Servicing and Securitization LLC filed a mortgage foreclosure; Straus appeared pro se and later counsel filed additional appearances for Straus and Alice Straus.
- JP Morgan substituted as plaintiff after the mortgage assignment and moved for default and summary judgment, plus foreclosure and sale.
- Notices of these motions were mailed to defendants; a judgment for foreclosure and sale was entered and a judicial sale held on August 24, 2010.
- Alice Straus appeared in court to quash service in October 2010; Joseph Straus moved to vacate the judgment in October 2010 claiming counsel’s prior meeting and lack of proper notice.
- Defendants argued that counsel’s March 16, 2010 additional appearance was served and thus proper under Rule 11, and that leave wasn't required to file an appearance.
- The trial court denied the motion to vacate in May 2011; sale confirmation occurred in July 2011; defendants appealed arguing the orders were void for improper notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of proper notice to attorney of record voids orders | J.P. Morgan | Straus | Not void; orders affirmed |
| Whether defendant's counsel’s appearance was properly filed/served | Plaintiff | Straus | Not properly filed or served; notice proper to Straus pro se |
| Whether leave of court was required before filing an appearance after 30 days | Plaintiff | Straus | Leave required; filing improper without leave |
| Whether the trial court abused its discretion in denying vacatur | Plaintiff | Straus | No abuse; denial affirmed |
| Whether Rule 11/Rule 13 procedures affected notice and jurisdiction | Plaintiff | Straus | Procedures satisfied; court upheld notice to Straus pro se |
Key Cases Cited
- Wilson v. Moore, 13 Ill. App. 3d 632 (1973) (void judgments only when lack of jurisdiction)
- Mortimer v. River Oaks Toyota, Inc., 278 Ill. App. 3d 597 (1996) (service defects do not impair court jurisdiction)
- Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002) (finality of judgments; cautious approach to collateral attacks)
- In re Marriage of Mitchell, 181 Ill. 2d 169 (1998) (voidable versus void orders; direct appeal for voidable judgments)
- City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998) (finality considerations in judgment-related disputes)
- Standard Bank & Trust Co. v. Madonia, 2011 IL App (1st) 103516 (2011) (standard of reviewing motion-to-vacate decisions)
- In re Marriage of Schneider, 214 Ill. 2d 152 (2005) (vacate standards and due process considerations)